Ethics in Service | Page 9

his client is entitled to the benefit of every remedy and defence authorized by the law of the land and that the lawyer is expected to assert every such remedy or defence. But it is steadfastly to be borne in mind that the great trust to the lawyer is to be formed within and not without the bounds of the law. The office of a lawyer does not permit, much less does it demand of him, violation of law or any manner of fraud for any client. He must obey his own conscience and not that of his client. These limitations are binding upon the lawyer as a sworn officer of the court, and compliance with them is the true reconciliation of the primary duty of fidelity to the client, with the constant and ever present duty owing to the minister of justice in the person of the judge. These statements of the duty of the lawyer to the court in the advocacy of causes and in the presentation of his client's case, are taken from the Code of Legal Ethics, which was approved by the American Bar Association. I think that all lawyers and judges will agree that when lawyers live up to them, the danger of injustice from the enthusiasm, skill or eloquence of their advocacy is quite remote.
I don't mean to say that lawyers do not differ in the force of their statements, in their logical faculty, in their method of arranging arguments, in their fluency and in the cogency with which they present the cause of their respective clients. Of course the man who is fortunate enough to engage the abler lawyer enjoys the advantage of those gifts with which nature has endowed his representative, but that element of inequality can hardly be eliminated from the administration of justice. It has more weight in a jury trial than it has before a court, for the lawyers before a court are matching their acuteness and learning not alone with the counsel for the other side, but with the cold scrutiny of a calm, intellectual and judicial mind, trained to consider argument, and experienced in the elimination of the irrelevant, the emotional and the illogical.
The jury system, though somewhat crude and not always certain, has advantages that outweigh its possibility of injustice in the judicial system of a free government among a free people. It is important that the people shall have confidence in the courts, and it is important that they shall feel that they may themselves be a part of the judicial machinery. The value of popular confidence in the verdict of a jury selected at random from a community is great enough to offset any tendency to error that may at times arise from the undue influence of a jury advocate upholding one side of the controversy before them. If the jury is misled by the histrionic eloquence of counsel so that it clearly violates justice in its verdict, the court may always set aside its decision and give a new trial. Moreover, in any properly adjusted system, the judge should be able to clear the atmosphere of any false emotion that counsel may have created. He can remind the jury in his charge that they are judges, who may not indulge their emotions or their prejudices. He should follow closely the argument of counsel to the jury in order that his charge may clear up the evidence by inviting the attention of the jury to the weakness of proof at critical points of the cause, or by pointing out either the bias of witnesses or their opportunity or lack of it for observation, thereby eliminating those phases of the controversy that the earnestness of counsel may have seized upon to divert the attention of the jury from the real issue.
I have recently heard an arraignment of our present judicial system in the trial of causes by a prominent, able and experienced member of the Boston Bar. (I am glad to call him a friend. I value him highly as such.) He ascribes what he calls the growing lack of confidence in the justice and equity of litigation in the courts to the fundamental error in their procedure. He feels that the procedure now in vogue authorizes and in fact requires counsel to withhold facts from the court which would help the cause of justice if they were brought out by his own statement. To remedy this he suggests that all counsel should be compelled to disclose any facts communicated to them by their clients which would require a decision of the case against the clients. He contends further that the rules of procedure, which exclude hearsay evidence, and prevent the jury from hearing many facts which business men regard as important evidence, make it